NEZ PERCE TRIBE
DEPARTMENT OF NATURAL RESOURCES
P.O. BOX 365 Lapwai, ID 83540
Snake River Currents
November 2004 Volume 4 Issue 11
For November, expect slightly cooler temperatures and below normal precipitation
As per action taken at the Fall General Council, the next SRBA meeting for tribal members will be held in the High School auditorium on Saturday, November 20. The meeting will begin at 10:00 am and end at 2 pm. These meetings are for tribal members to ask questions about the proposed settlement and give input to the NPTEC and SRBA Team regarding the decision making process. All tribal members are encouraged to attend!
A. No. If the Tribe loses its appeal in the Idaho Supreme Court, it can then take the case to the United States Supreme Court. A ruling by the United States Supreme Court ends all litigation. The jurisdiction of the World Court—more precisely the International Court of
Justice, in the Netherlands- is limited to member states of the United Nations and while the United States is a member state, the Nez Perce Tribe is not. Further, although the World Court also issues advisory opinions to other international organizations, they are non-binding and only available to United Nations-related agencies.
Q. If the Tribe accepts the proposed settlement, how does the “Wood decision” go away?
A. In the litigation of the Tribe’s instream flow claims, the SRBA Court ruled that the Tribe’s off-Reservation fishing right did not imply a water right for instream flows. Judge Wood, then presiding over the SRBA Court, further ruled that the Nez Perce Reservation had been diminished due to the 1893 Agreement that opened up the Reservation to settlement by non-Indians. If the Tribe agrees to the proposed settlement, the settlement will be a final decree of the SRBA Court which will override all previous rulings on the Tribe’s claims.
Q. The McCarran Amendment requires that all water claims of the United States and Indian Tribes be adjudicated in state Court. Can the Tribe seek the repeal of the McCarran Amendment?
A. It would be politically impossible to get the McCarran Amendment repealed. The Idaho congressional delegation would never agree to bring legislation that would eliminate state court jurisdiction over the adjudication of federal and tribal water rights. Other western states would also not support such legislation. Even if the McCarran Amendment were eliminated or amended in the future, that would not affect state court proceedings that have already been started –like the Tribe’s SRBA claims.
Q. Why do we have to negotiate for water that we already own?
A. The Tribe does not currently “own” any water, either on or off the Reservation. A claim to water is not the same as ownership of a water right. Under three different legal theories, the Tribe filed three types of claims to water on and off the Reservation. These include: 1) on-Rez consumptive use claims for domestic, commercial, municipal, industrial, cultural and other uses; 2) claims for instream flows for fish and habitat on and off the Reservation; and 3) claims to springs and fountains in the 1863 ceded area based on the Treaty of 1863 which gives the Tribe the right to access and use springs in the ceded areas in common with non-Indians.
Q. In the upper Snake River component of the proposed settlement, the Term Sheet states that the Idaho Code will be reenacted to authorize the rental of “up to 427, 000 acre-feet of water for flow augmentation for the term of the agreement.” Do the words “up to” imply that less water will satisfy the terms of the agreement? What guarantee is there that 427,000 acre-feet of water will be provided every year?
The intent of the agreement is that 427,000 acre-feet of water will be provided from Bureau of Reclamation storage projects every year for thirty years. However, the Term Sheet also states that no guarantee can be provided, beyond the terms of the agreement, that any particular amount of water can be provided in any particular water year. The reliability of getting the 427,000 acre-feet is dependant on numerous things, including the amount of snowfall, which supplies the water to the reservoirs in the upper Snake and the ability of the United States to rent the water from willing lessers. The Term Sheet also states that, if necessary to implement the flow augmentation program, the Bureau of Reclamation can negotiate a lease with Idaho Power to rent uncontracted and powerhead space in the Boise Project. Further, reauthorization of the Idaho Code allows for the rental of water from storage or natural flow sources from the Snake River above Lewiston. While there is no guarantee that 427,000 acre-feet will provided every year, the Term Sheet allows the U.S. to reopen the agreement under certain conditions, which includes new information that the
flow augmentation operation is not meeting expectations. The Term Sheet also allows the United States to acquire on a permanent basis or rent up to 60,000 acre-feet of consumptive natural flow water rights diverted and consumed below Milner and above Swan Falls from the mainstem Snake River. This brings the total flow augmentation from the upper Snake up to 487,000 acre-feet.
Q. As part of the proposed settlement, instream flows will be set on nearly 200 streams of importance to the Tribe in the Salmon and Clearwater Basins but these flows will be subordinated to future domestic, commercial, municipal and industrial uses. Will these flows be protective of fish if they are subordinated to other uses?
A. In streams bordered by federal wilderness, the allowable future development is minimal, so the flows will be protective. In streams bordered by federal, non-wilderness lands, the allowable future development is higher than in wilderness areas, but still protective of fish and habitat. Streams surrounded by state and private lands will have the least protection and the most allowable future development. However, some of these streams are already over-developed so only limited, if any, future development can occur.
Q. The Term Sheet states that the Tribe cannot bring any treaty-based theory to court for more water for any purpose. Does this mean that our treaty rights have been diminished?
A. No. All treaty fishing, hunting, gathering, pasturing rights are maintained. If the Tribe accepts the proposed settlement, the Tribe could not use any treaty right theory or, for the duration of the 30 year Biological Opinion, any Clean Water Act claim to require either additional flow augmentation or greater instream flows in Idaho.
Q. Can any of the terms in the proposed settlement be changed between now and March 31, 2005?
A. No, none of the concepts in the Term Sheet can be changed. NPTEC has approved the term sheet, but has not given final approval on the proposed settlement. There are many subsidiary agreements such as management of the hatcheries, the Dworshak stored water agreement, the transfer of the BLM land and setting instream flows that require many details to be developed by March 31, 2005.
Currents is published by Greg Haller, SRBA Coordinator for the Nez Perce Tribe
Department of Natural Resources. For
information regarding this newsletter, please contact Greg at (208) 843-7368
ext. 2612. For additional
information about the SRBA and the proposed settlement of the Tribe’s claims,
please contact Heidi Gudgell, SRBA attorney for the Nez Perce Tribe Office of
Legal Council at (208) 843-7355 ext. 2381.
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